DIPAN DEVI Vs. NIKKU RAM

JUDGEMENT

(1.) This petition is filed against an order passed by the learned Addl. Chief Judicial Magistrate, Ghumarwin, District Bilaspur dated November 22, 2000 in case No. 18/10 of 1995. The petitioner herein, are wife of respondent (petitioner No.1) and daughter and son of respondent (petitioners No.2 and 3) respectively. It appears that the petitioners approached the Court of Sub Divisional Judicial Magistrate, Ghumarwin, District Bilaspur by filing an application under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) on March 20, 1992, praying therein that they may be awarded maintenance. So far as petitioner No.1 is concerned, an amount of Rs.500/ - was claimed whereas for two minor children, an amount of Rs.600/ - (Rs.300/ - each) was claimed, (Rs.1100/ - in all). The learned Magistrate in the light of the provisions of sub -section (2) of Section 32 of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as the Act), forwarded the matter to" the Panchayat so that it can be heard and decided by the Gram Panchayat. Since under the Act, a Gram Panchayat is also empowered to grant maintenance allowance not exceeding Rs.500/ -, the Panchayat made an order on August 9, 1995. The original order is in Hindi and Translation has been supplied by the learned counsel for the petitioners, which is on record. The operative part there of states that the application filed by the petitioners, which is on record. The operative part thereof states that the application filed by the petitioner was partly allowed and petitioner No.1 (wife) was awarded monthly maintenance of Rs.300/ - whereas both children were awarded maintenance of Rs.400/ -(Rs.200/ - each ) that is, in all Rs.700/ -.

(2.) Being aggrieved by the order passed by the Panchayat, the husband approached the Additional Chief Judicial Magistrate under Section 67 of the Act. The said section enables the Judicial Magistrate/Sub Judge to entertain an appeal by an aggrieved person, if an order or decree is passed by a Bench of Gram Panchayat. The appeal was barred by limitation as it was filed beyond 30 days. As observed in the order, considering the service of order, there was delay of only three days and, hence, delay was condoned and the appeal was entertained.

(3.) On merits, the learned Magistrate held that when the petitioners approached the Judicial Magistrate by invoking the provisions of Section 125 of the Code, keeping in mind the provisions of sub -section (2) of Section 32 of the Act, the matter was sent to the Panchayat with a direction that de novo proceedings would be initiated by the Panchayat. The learned Magistrate, however, noted that the said order had not been complied with and de novo proceedings had not been held and an order was passed by the Panchayat. Such order, in the opinion of the learned Magistrate was not in consonance with law. In this connection, reliance was placed by the learned Magistrate on a decision of single Bench of this Court in Smt. Hari Devi V. Bhagat Singh and another, (1996) 2 SLJ 1625. The learned Magistrate in para 6 stated thus : "Keeping in view the ratio set out in the aforesaid authority, it is clear that the concerned Gram Panchayat in which the case was transferred was to try the case de novo, whereas the present case has not been decided by the concerned Gram Panchayat de novo, bu4 on the basis of the statements recorded in this Court. In such circumstances, I have no hesitation to hold that the order passed by the concerned Gram Panchayat is illegal and therefore is liable to be set -aside and quashed. "However, the case is remanded to the Gram Panchayat Anarpur, for de novo trial with the direction to proceed with the present petition under Section 125 Cr.P.C. in accordance with law. The record of the Gram Panchayat be returned along with the copy of this order, whereas, the remaining record be consigned to record room, after completion."